ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050419
Parties:
| Complainant | Respondent |
Parties | Diana Kostyra | Reynolds & Roche Limited (In Liquidation) Zero One |
Representatives | Barry Kenny and Anusha Madhusudhan of Kenny Sullivan Solicitors | Michael Kennedy Irish Insolvency Liquidations |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00061754-001 | 23/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00061754-002 | 23/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061754-003 | 23/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061754-004 | 23/02/2024 |
Date of Adjudication Hearing: 09/10/2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Respondent in this case was initially named incorrectly and the Complainant made an application for me to amend the above complaints to reflect “ Reynolds & Roche Limited (In Liquidation) “ as the Respondent and identified the above liquidator. The WRC wrote to the liquidator and gave them an opportunity to make submissions on this application. They did not and the case later proceeded with the amended name and with the liquidator on notice.
Background:
The Complainant started working for the Respondent in September 2021. In October the Respondent notified her that she would be made redundant but without giving date. In December they moved to make her redundant without only a couple of days’ notice. |
Summary of Complainant’s Case:
The Complainant gave evidence under affirmation. She worked five days a week with a gross salary €875. She was never given a contract of employment. On the 23rd of October management sought to meet with her and told her they were in financial difficulty and made her redundant. They didn’t discuss any alternatives. They immediately reduced hours without notice and she was put on three days a week from the 25th of October. She was made redundant on the 23rd of December. They initially promised to pay her statutory redundancy of €3000 but they only paid €2250 in instalments. She had to chase them for this. She later found out that others were hired subsequent to her dismissal and that these people were covering some of her duties. There was a €500 Christmas Bonus was paid every year and this was paid to all other colleagues except the Complainant. There was no indication that it was discretionary. She got a job as a receptionist at a spa on the 21st of March 2024. She is on less pay. She earns €15 per hour which comes out as €175 per week less. She had tried hard to find a job in January and February but this is a difficult time of year to find work in her industry. |
Summary of Respondent’s Case:
The Respondent was not on notice. I am satisfied that they were on notice of the hearing. |
Findings and Conclusions:
CA-00061754-001 – Unfair Dismissals Act Section 6(1) of the Unfair Dismissals Act 1977 provides that:- Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. As such the burden is on the Respondent to establish that this dismissal was permitted under the act. The Respondent did not attend the hearing but it is reasonable to presume from the Complainant’s evidence that would submit that in this case dismissal was allowed as per Section 6(4)(c) which states that: Without prejudice to the generality of subsection(1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from ... the redundancy of the employee... It is important to note that Section 6(7) provides that:- Without prejudice to the generality of subsection(1)of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal... A reasonable Respondent is required to carry out a thorough exercise to avoid redundancy. This obligation was recognised by the Labour Court in Students Union Commercial Services Ltd and Alan Traynor. The Complainant’s evidence is that her employer failed to do this and indeed they hired other people to carry out her duties. The Respondent failed to attend the hearing and discharge their burden to demonstrate that it was in fact a fair redundancy. In the circumstances the complaint must succeed. Redress Section 7(c) of the Unfair Dismissals Act outlines that as an alternative to reinstatement or reengagement I can award compensation to the Complainant, if they incurred any financial loss attributable to the dismissal. The legislation provides an extremely clear definition of what is financial loss. “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; From the above it is clear that income and accrued statutory redundancy rights/ superannuation are different elements of financial loss and that the act envisages redress for both elements of financial loss. That is actual/prospective loss of income and the value of any loss or diminution of statutory redundancy rights or superannuation rights attributable to the dismissal. The Complainant received a redundancy lump sum when she was terminated which was €750 than what she was entitled to under the Redundancy Payments Act. It is important to note that the Unfair Dismissals Act does not provide for payment of accrued statutory redundancy rights at the time of dismissal but instead compensation for the diminishment of those rights attributable to the dismissal. The CRO shows that the Respondent went into liquidation on the 5th of March 2024 and if the Complainant was not dismissed she presumably would have carried on until then and been paid approximately €3550 on termination. As she was already paid €2250 I am the view that this element of her loss is €1300. Acknowledging that the Complainant would have been terminated in March 2024 is important to determining her loss of income attributable to the dismissal as well. The Complainant would have carried on working, on short time of 3 days per week at €525, for a further 10 weeks. She would have received the Christmas bonus of €500. Her total loss attributable to the dismissal is €7050 and I am satisfied that such an award would be just and equitable in all the circumstances. CA-00061754-002 - Redundancy Payments Act As I have found the Complainant was unfairly dismissed the complaint under this act must fail. CA-00061754-003 - Payment of Wages Act. The Complainant has submitted a complaint under the payment of wages act alleging that she was put on short-time of three days a week from the end of October 2023 until her dismissal on the 23rd of December. She was never given a written contract of employment and as there was no short time provision in the contractual relationship she alleges that this constituted an unlawful deduction contrary to the payment of wages act. This position has been endorsed by the Labour Court in Aer Lingus v Jones PWD2248 where the Court concluded that the contract of employment set out the rate of pay which was properly payable to the employee in any week and that this was a full time contract and did not provide for short-time. Any reduction in payment from the full time rate was considered a deduction for the purposes of the act. The Complainant’s unwritten contract of employment with the Respondent appears to have been full time and as such the move to short time for 8 weeks constituted a deduction in wages of €1750. The Complainant alleges the deduction was unlawful under the act and the Respondent has not attended to provide any defence to this claim or point to any provision of Section 5 which would permit the deduction. In the circumstances I am satisfied that the complaint succeeds. CA-00061754-004 - Payment of Wages Act This complaint relates to the payment of the Complainant’s Christmas bonus which I have already recognised as financial loss attributable to her dismissal. In the circumstances I do not believe that I should consider a payment of wages act claim for the same payment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00061754-001 I find that the complaint is well founded and direct the Respondent to pay the Complainant €7050. CA-00061754-002 I find that the complaint is not well founded. CA-00061754-003 I find thar the complaint is well founded and direct the Respondent to pay the Complainant €1750. CA-00061754-004 I find that the complaint is not well founded. |
Dated: 17-06-2025
Workplace Relations Commission Adjudication Officer: David James Murphy
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